Bigger constitutional crisis to come?

Nov 6 2018 (The Sunday Times - Sri Lanka) - Musical chairs is a party game but what we see today is a cacophony of voices between supporters of competing political parties egging on two leaders trying to sit in one seat to the derision of the world.

This is no fun time in Sri Lanka. The country has been turned topsy-turvy by President Maithripala Sirisena’s impulsive decision on October 26 through sheer political expediency to sack the Prime Minister and appoint a new one without recourse to Parliament.

Many feel he could have done better than to throw the country into a state of limbo and confusion worse confounded. It has split the country and its people whose sovereignty, which includes their franchise, he undertook to protect.

This brings to focus the question of the office of the Executive Presidency, an issue that was in the forefront among other issues that brought President Sirisena to where he is with the solemn pledge to abolish the system that breeds autocracy. Now lost in the fog of the ongoing political turmoil, the issue in fact ought to emerge once the perplexity and confusion of the day clears.

Very clearly, Sri Lankan politicians have grappled with handling the wide powers vested in an Executive President. In countries that have a Presidential system, most notably the United States, or a hybrid system of government like in France, the separation of powers and the institutions as well as the democratic political culture act as a safety net from a President acting as an autocrat.

There is no gainsaying that a parliamentary dictatorship is no different to a presidential dictatorship. A new word in the political lexicon has emerged; “Democratorship”.

When J.R. Jayewardene introduced the Executive Presidential system, he cited the instability that existed in the country in 1960 when two Parliamentary elections had to be held within three months, and in 1964 when a government fell by one vote in Parliament. He argued that a strong Executive President would hold the country together when the vagaries of political winds destabilise Parliament and the country. Such a President was to be not only the Head of State, but also the Head of Government.

The October 26 decision of President Sirisena, however, did just the opposite. The Executive President himself destabilised Parliament by sacking the incumbent Prime Minister without notice. Whether Sri Lanka should revert to having a non-political Head of State purely to ensure the country remains stable in the midst of political headwinds and tailwinds has been the subject of public agitation for some time.

The then Minister of Justice and Constitutional Affairs and now the de facto leader of the party headed by the newly elected Prime Minister wrote to this newspaper in its issue of November 20, 1994; “Today, sixteen years after its introduction, a consensus is emerging across the political spectrum that the parliamentary executive model must be re-introduced”. Since 1994, all parties have ridden to office with the solemn pledge to the voters that they would do away with the Executive Presidency because, while in Opposition they have had a taste of its repressive nature – only to give that pledge short shrift when ensconced in that same seat. President Sirisena has been no exception.

Learned and not-so-learned pundits can argue till the cows come home on the provisions of the Constitution. But there is no better way to interpret the Constitution other than to honour it in spirit rather than in letter.

This is the first time in the country’s 70 years since Independence that a new Government has been installed overnight without an election. In 1952 and 1959, when Prime Ministers died in office, the same Government continued under new leaders, but they soon went for elections to get fresh mandates. Governments have been brought down by Parliamentary votes (1964 and 2001) and by premature dissolutions (2004), but never has a Government been replaced overnight invoking questionable provisions of the Constitution and had Opposition party supporters march into state institutions like Adolf Hitler’s brown shirts (the Sturmabteilung – the Storm Detachment) did in Nazi Germany during the power grab of that era. A dangerous precedent has been set in motion and Sri Lanka is fortunate that the military top brass maintained in this situation that they will follow legal orders and not entertain ideas of exploiting the political situation in the country.

Palace coups and the change of guard in a country’s leadership happen in Saudi Arabia, but never before in Sri Lanka. We have said it before (beginning in our issue of November 23, 2014) that given the fickleness of politics and the impatience of Opposition parties to bring down Governments – always scheming, bribing and promising — that elections should be on fixed dates. This does not leave out the excitement of Democracy and Elections, but it leaves out the uncertainty and the volatility that a country and its economy can ill afford.

The United States is a good example to follow. They have given their electoral process some stability. Take this coming Tuesday when they will be having mid-term elections for their Parliament (Congress). All elections are fixed for the first Tuesday of November. Every US citizen knows the exact date of even the next US Presidential election, four years to the date of the previous election. There is no Constitutional punditry involved in trying to interpret the US Constitution on the matter. No throwing the people into a frenzied pastime of guessing when the next election is or what the stars of political leaders portend.

The question here is not whether the country is in an economic mess. The country has always been in an economic mess. Or whether the President’s alleged assassination inquiry was not moving fast enough. Those are shallow arguments to justify the steps that were taken on October 26. The only question is whether the President respected the Sovereignty of the People (Article 3 of the Constitution) – which includes the Franchise of the People and which he undertook to protect when he took his oath of office as President on January 9, 2015.

As of this day, some may well say that Sri Lanka has a de facto Prime Minister and de jure Prime Minister, yet another world record. Those who say that the new Government is legal can be asked if it is legal but illegitimate until it has proved it commands the majority of Parliament. If the new Prime Minister fails to get the majority support of Parliament, the country goes into bigger turmoil. The President has said he will resign in that case, but taking his word at face value has not been easy. If the new Prime Minister cannot legitimise his appointment through a Parliamentary confidence vote, by hook or by crook, this is only the beginning of a bigger Constitutional crisis to come.